FEDERAL COURT OF AUSTRALIA

Mbuzi v Baldwin [2016] FCA 1314

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    On 30 August 2016, the applicant, Josiyas Mbuzi, lodged with the Queensland District Registry of this Court an application for leave to appeal against orders made by Edelman J. On 6 September 2016, the respondent, the Queensland District Registrar, made a decision refusing to accept Mr Mbuzi’s application for filing.

2    Mr Mbuzi seeks judicial review of the Registrar’s decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).

3    For the reasons that follow, Mr Mbuzi’s application for judicial review will be dismissed.

background

4    On 25 September 2015, Mr Mbuzi filed an originating application (QUD 881 of 2015) against AGL Retail Energy Limited (“the proceeding”). Mr Mbuzi claimed that AGL Retail Energy Limited was his electricity supplier and had overcharged him and improperly made demands for payment and issued disconnection notices to him. Mr Mbuzi sought injunctions and compensatory damages.

5    On 20 October 2015, the solicitor acting for AGL Retail Energy Limited, sent an email to Mr Mbuzi saying:

We have been instructed by our client that the retailer responsible for invoicing for the electricity supplied to your premises is AGL Sales Pty Ltd. You do not have a contract and do not have an account with AGL Retailer (sic) Energy Limited for the electricity supply. Besides our view that your claim was made without a proper basis, fundamentally you have sued the wrong party.

6    Mr Mbuzi then filed an application on 19 November 2015 seeking an order that AGL Sales Pty Limited be substituted as the respondent in place of AGL Retail Energy Limited.

7    On 3 December 2015, Edelman J ordered that:

1.    The applicant’s originating application filed on 24 September 2015 be amended in the terms set out in his application filed on 18 November 2015, as amended to remove the proposed respondents and to insert as the sole respondent AGL Sales Pty Limited.

…

5.    The respondent to this application be restyled AGL Sales Pty Limited.

8    Despite his Honour’s clear orders, the proceeding has been plagued by confusion as to which entity is the respondent. AGL Retail Energy Limited has continued to be named as the respondent both in documents issued by the Court and filed by the respondent.

9    On 17 February 2016, the parties attended a mediation and resolved the matter. The terms of the settlement required Mr Mbuzi to discontinue the proceeding and that AGL Sales Pty Limited waive any fees for the supply of electricity and other charges for the period up to 31 March 2016.

10    Mr Mbuzi filed a notice of discontinuance of the proceeding on 18 February 2016. The notice stated that it was, “As per deed of settlement of 17 February 2016”.

11    On 18 March 2016, AGL Sales Pty Limited rendered an invoice to Mr Mbuzi for $496.35 for electricity supplied between 16 December 2015 to 16 March 2016. That action seemed inconsistent with the terms of settlement.

12    On 1 April 2016, Mr Mbuzi filed an application to set aside the discontinuance and reopen the proceeding. The application was made on the basis that AGL Sales Pty Limited had “reneged on the terms of the deed of settlement upon which the notice of discontinuance was based”.

13    Mr Mbuzi’s application was listed for directions on 3 May 2016. AGL Sales Pty Limited provided draft minutes of order seeking an order that Mr Mbuzi’s interlocutory application be “struck out”. Edelman J determined to treat the draft minutes of order as an application for summary dismissal of Mr Mbuzi’s interlocutory application. His Honour ordered that the application for summary judgment be dealt with on the papers and also made orders for the filing of written submissions.

14    On 9 May 2016, AGL Sales Pty Limited filed submissions in which it indicated that it was also applying for a vexatious proceedings order against Mr Mbuzi under s 37AO of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).

15    Justice Edelman gave judgment upon the application for summary dismissal of Mr Mbuzi’s application on 5 July 2016. His Honour dismissed Mr Mbuzi’s application with costs. His Honour decided that since the vexatious proceedings application had not been foreshadowed, Mr Mbuzi should be given an opportunity to be heard orally in relation to that application.

16    On 1 August 2016, a formal application in QUD 881 of 2015 was filed seeking, relevantly, the following orders:

1.    Of the Orders made by this honourable Court on 5 July 2016:

a.    Order 2 be set aside; and

b.    Order 2 be replaced by this order: “The Applicant pay the Respondent’s costs of and incidental to the Applicant’s Application dated 30 March 2016 on an indemnity basis”;

2.    Pursuant to s.37AO of the Federal Court of Australia Act 1976 (Cth), the Applicant be prohibited from instituting any proceedings in any Registry of the Federal Court of Australia against:

a.    AGL Retail Energy Ltd (ACN 074 839 464);

b.    Any employee, officer, or agent of AGL Retail Energy Ltd (ACN 074 839 464);

c.    Geoffrey Mendelson Lawyers; and

d.    Any employee, officer, or agent of Geoffrey Mendelson Lawyers.

3.    The Applicant pay the Respondent’s costs of this application, on an indemnity basis.

17    The interlocutory application purported to be filed by AGL Retail Energy Limited even though Edelman J had made orders on 3 December 2015 substituting AGL Sales Pty Limited as the respondent. This seems to be an obvious error, and suggests that the other references in the application to AGL Retail Energy Limited should also instead be to AGL Sales Pty Limited.

18    In an email dated 17 August 2016 to the associate to Edelman J, copied to the solicitors for the AGL entities, Mr Mbuzi stated that “the respondent…lacks standing in this proceeding”. In his email, Mr Mbuzi stated that AGL Retail Energy Limited decided to persist with the application, despite his request that it withdraw the application.

19    On 11 August 2016, Mr Mbuzi filed an interlocutory application seeking orders including:

1.    That the respondent’s application filed on 29 July 2016 be dismissed.

2.    That the matter be decided on papers without the parties physically making appearances.

…

20    Mr Mbuzi’s application may be understood as seeking summary dismissal of the application made by AGL Retail Energy Limited.

21    A directions hearing was conducted by Edelman J on 19 August 2016. Mr Mbuzi has not provided the Court with a transcript of that directions hearing, but deposes that he strongly argued that no orders, including directions, could be obtained by AGL Retail Energy Limited. He deposes that Edelman J said that he would make the directions sought by AGL Retail Energy Limited, “because the issues…are similar”. Mr Mbuzi does not explain the context in which his Honour’s comment was made and has not deposed as to anything else said during the directions hearing.

22    Justice Edelman made the following orders on 19 August 2016:

1.    The applicant’s interlocutory application filed on 11 August 2016 be dealt with at the same time with the respondent’s interlocutory application filed on 29 July 2016.

2.    The parties file and serve any affidavits on which each party proposes to rely on in support of their respective applications by 4.00pm on 14 September 2016.

3.    The parties file and serve any affidavits on which each party proposes to rely on in opposing each other’s applications by 4.00pm on 29 September 2016.

4.    The parties file and serve submissions in support of their respective applications by 4.00pm on 21 October 2016.

5.    The parties file and serve submissions in reply to each other’s submissions referred to in order 4 by 4.00pm on 11 November 2016.

6.    The hearing of the application be listed on 3 February 2017 at 10.15am (with a provisional listing on 6 December 2016 if that date later becomes available).

...

23    On 30 August 2016, Mr Mbuzi lodged with the Federal Court Registry an application for leave to appeal against the orders made by Edelman J made on 19 August 2016. The application was accompanied by a draft notice of appeal which lists the proposed grounds of appeal as follows:

1.    Jurisdictional error

2.    Otherwise contrary to law

3.    Misdirection

4.    Prejudice

5.    Apprehended bias

24    On 6 September 2016, the Registrar decided pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) to not accept the application for leave to appeal for filing. The Registrar’s reasons for her decision were stated as follows:

I spoke to you at the Registry reception to explain why I considered that your application should not be accepted for filing. You seek leave to appeal the directions made by Justice Edelman on 19 August 2016 in proceedings QUD881/2015. You are the applicant in those proceedings against AGL Retail Energy Ltd (sic).

…

A proceeding may amount to an abuse of process if, irrespective of the propriety of the purpose for instituting the proceeding, it can clearly be seen to be foredoomed to fail: (see the judgment of the High Court in Walton v Gardiner (1993) 177 CLR 3 78, at 393).

The orders made by Justice Edelman dated 19 August 2016 are procedural in nature and are made as part of the Court’s case management of QUD881/15, to prepare the case for hearing in February 2017.

The Full Court (Rares, Buchanan and Foster JJ) in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 held at [35] that:

A procedural direction is not a judgment for the purpose of s24A (sic) of the FCA Act. The primary judge’s decision was interlocutory and dealt with a matter of practice and procedure. Particular caution is exercised by appellate courts in reviewing decisions of primary judges pertaining to practice and procedure. There are no rigid or exhaustive criteria on which an appellate court may interfere in such matters, although, generally, injustice flowing from the order appealed against will be relevant.

The directions made by Justice Edelman do not conclude any fundamental issues between the parties. As I said, they are procedural in nature only. ·There can be no basis upon which it can be said that that (sic) the directions have any adverse impact upon you. ·Therefore there is no basis upon which any appeal against those directions could succeed or would have any useful effect at all. Ogawa v University of Melbourne [2005] FCA 1150 (French J)

Pursuant to rule 2.26 of the Federal Court Rules 2011 I have decided not to accept the Application for Leave to Appeal for filing for the reasons outlined about (sic).

(Underlining added.)

The submissions

25    Mr Mbuzi submits that the Registrar erred in concluding that any application for leave to appeal against the directions made by Edelman J was foredoomed to fail. The Registrar’s conclusion appears to be based upon a view that an appeal could not succeed against directions which are procedural in nature and do not conclude any fundamental issues between the parties. Mr Mbuzi relies upon the judgment of the Full Court in Letten v Templeton [2014] FCAFC 131 in support of his argument that procedural orders may be the subject of leave to appeal.

26    Mr Mbuzi also submits that the Registrar exceeded her administrative functions and engaged in a judicial exercise by assessing the merits of the application for leave to appeal and conducting a “trial” of his application for leave to appeal.

27    The Registrar has filed a submitting notice pursuant to r 12.01 of the Federal Court Rules. Consequently the Registrar has taken no further part in the proceeding.

consideration

28    The Registrar’s decision was made pursuant to r 2.26 of the Federal Court Rules. That rule provides:

2.26    Refusal to accept document for filing – abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

29    The Registrar concluded that the application for leave to appeal was an abuse of the Court’s process because the application was foredoomed to fail. The Registrar reached that conclusion by relying on a passage apparently taken from the judgment of the Full Court in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 (“Spirits International”) at [35]. The Registrar attributed to the Full Court the words, “A procedural direction is not a judgment for the purpose s 24A (sic) of the FCA Act”. However, those words do not appear in the Full Court’s judgment. The Registrar erroneously transposed those words into the passage she quoted.

30    The Registrar’s error was a substantial one. It appears to have led the Registrar to think that the Court has no jurisdiction to entertain an application for leave to appeal where orders are procedural in nature and do not conclude any “fundamental issues” between the parties. In fact, the passage at [35] of Spirits International indicates that while particular caution is exercised by appellate courts in reviewing judgments of primary judges relating to matters of practice and procedure, there are no rigid or exhaustive criteria.

31    The view taken by the Registrar that a procedural order cannot be a judgment for the purpose of ss 24(1)(a) and 24(1A) of the FCA Act is wrong. Section 24(1)(a) of the FCA Act confers jurisdiction on the Court to hear and determine appeals from judgments of the Court constituted by a single judge. The word “judgment” is defined in s 4 of the FCA Act to mean, relevantly, “a judgment, decree or order, whether final or interlocutory”. A “judgment” in this context is the formal order made by the Court which disposes of, or deals with, the issue for determination: Letton v Templeton at [17], Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197 at [46].

32    In the present case, the issues before Edelman J were whether directions could be made concerning an interlocutory application for vexatious proceedings orders and other orders brought by an entity that was no longer a party to the principal proceeding, and what directions ought be made. His Honour apparently resolved the issues, making orders for the filing of material and setting down both the application for vexatious proceedings orders and the application for summary dismissal of that application for hearing. The orders disposed of the issues for determination in the directions hearing. There was an interlocutory judgment capable of being the subject of an application for leave to appeal pursuant to s 24(1A) and an appeal under s 24(1)(a) of the FCA Act. By deciding to the contrary, the Registrar was in error.

33    A decision made by a Registrar under r 2.26 of the Federal Court Rules is an administrative decision which is amenable to review under the ADJR Act: see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [15]-[16], Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 at [49], Rahman v Hedge [2012] FCA 68 at [5]. In my opinion, the decision involved an error of law within s 5(1)(f) of the ADJR Act.

34    Mr Mbuzi’s second submission is that the Registrar exceeded her administrative function and trespassed into a judicial one. In light of my conclusion as to Mr Mbuzi’s first submission, it is unnecessary for me to decide that issue, and I prefer not to decide it as Mr Mbuzi did not develop his argument and I have not had the benefit of submissions from a contradictor. However, I note that there is authority to the effect that a Registrar’s decision under the predecessor of r 2.26 of the Federal Court Rules is not judicial: Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154 at 158-159.

Discretion

35    Although I have found that there was an error of law on the part of the Registrar, the Court has a discretion under s 16(1) of the ADJR Act as to whether to grant relief.

36    A basis for the discretionary refusal of relief is futility. If Mr Mbuzi’s proposal application for leave to appeal is bound to fail on its merits, it would be futile to set aside the decision and order the Registrar to accept the application for filing. Accordingly, it is necessary to consider whether the proposed application for leave to appeal would have any prospects of success.

37    In an application for leave to appeal, the two principal factors to consider are whether the judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

38    Mr Mbuzi proposes to seek leave to appeal against the orders made by Edelman J on 19 August 2016. Those orders provide for the application for vexatious proceedings orders made by AGL Retail Energy Limited to be dealt with at the same time as Mr Mbuzi’s application for summary dismissal of that application on 3 February 2017. The orders also provide for the parties to file and serve affidavits and submissions.

39    Mr Mbuzi has not provided a transcript of the directions hearing that led to the making of those orders. Neither has he purported to set out a full account of what was said at the directions hearing. It seems likely that there was argument or discussion about whether the solicitors for AGL Sales Pty Limited had made an error by naming AGL Retail Energy Limited as the applicant in the body of the application for vexatious proceedings orders, and whether it proposed to seek leave to amend the application. The material does not adequately demonstrate what his Honour’s reasons were for the orders that were made.

40    There is no indication in the material that Edelman J made any substantive determination as to whether the application for vexatious proceedings orders and other orders could be brought by AGL Retail Energy Limited or whether orders could be made in favour of that entity. To the contrary, the fact that Mr Mbuzi’s application for summary dismissal is to be heard on 3 February 2017 indicates that his Honour will hear argument on those issues at that time.

41    Even assuming that AGL Retail Energy Limited has deliberately brought the interlocutory application in its own name and, in fact, wishes to seek orders restraining Mr Mbuzi from bringing proceedings against it, it is far from apparent that his Honour made any error by setting down the application for hearing and giving directions to facilitate the hearing. For his Honour to have refused to make directions would have involved the determination of Mr Mbuzi’s application in his favour without AGL Retail Energy Limited having an adequate opportunity to resist Mr Mbuzi’s application: cf Perovich v Whitton [2016] FCAFC 126 at [4].

42    In any event, Mr Mbuzi has lost nothing as a result of the orders made by his Honour. Mr Mbuzi will have an opportunity to argue his application for summary dismissal and to resist the application brought by AGL Retail Energy Limited at the hearing on 3 February 2017. Although it appears on the face of the material that the application ought to have been brought by AGL Sales Pty Limited rather than AGL Retail Energy Limited, that is an issue which will be determined by his Honour after considering the evidence and hearing argument. If his Honour rules against Mr Mbuzi, he will have the opportunity to file an application for leave to appeal.

43    Mr Mbuzi also alleges apprehended bias on the part of Edelman J. Although Mr Mbuzi did not develop any submissions on this issue, I infer that the ground is based on the same allegations I have discussed in my reasons for judgment in Mbuzi v AGL Sales Pty Limited [2016] FCA 1313 at [53]-[59]. For the same reasons, Mr Mbuzi’s ground of apprehended bias cannot succeed.

44    Mr Mbuzi’s proposed application for leave to appeal against the orders made on 19 August 2016 would have no prospect of success because he cannot demonstrate error in the interlocutory judgment he seeks to appeal and because he would suffer no substantial injustice, supposing the judgment to be wrong. It would be futile to set aside the decision made by the Registrar to refuse to accept Mr Mbuzi’s application for leave to appeal for filing.

45    For these reasons, Mr Mbuzi’s application for judicial review will be dismissed.

Associate:

Dated:    9 November 2016